Harish Chandra Tiwari vs U.P. State Bridge Corp. Ltd. Thru. ...
2023 Latest Caselaw 19097 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:49217
 
Court No. - 7
 

 
Case :- WRIT - A No. - 13792 of 2021
 

 
Petitioner :- Harish Chandra Tiwari
 
Respondent :- U.P. State Bridge Corp. Ltd. Thru. M.D. And Anr.
 
Counsel for Petitioner :- Ashok Shukla
 
Counsel for Respondent :- Shishir Jain,Ram Ratan
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and Shri Ram Ratan Lal, learned counsel for the respondents-Corporation.

2. The instant petition has been filed by the petitioner for the following main reliefs:

"(1) Issue an order, direction or writ in the nature of mandamus commanding the respondents to make the payment of retiral claims of the petitioner such as G.I.S., Gratuity, Leave encashment and Pension with interest thereon @ 18% p.a. w.e.f. 01.09.2020 i.e. the date on which these were due till the date these are actually paid.

(2) Issue an order, direction or writ in the nature of mandamus commanding the respondents to make the payment of arrears of DA which have fallen due since 2016 and allow the annual increments due in July, 2018, July, 2019 and July, 2020 and pay the amount accrued on account of grant of increments with interest for the delay caused in their payments."

3. At the very outset, Shri Ram Ratan Lal, learned counsel appearing for the respondents-Corporation states that so far as the relief no.2 in the prayer clause is concerned, the respondents-Corporation vide order dated 25.01.2023 has rejected the claim of the petitioner, a copy of said order has been handed over to the learned counsel for the petitioner in the Court today itself.

4. Learned counsel for the petitioner prays that so far as the relief no.2 in the prayer clause is concerned, he may be permitted to withdraw the writ petition with a liberty to challenge the order dated 25.01.2023 by means of a fresh petition.

5. Shri Ram Ratan Lal, learned counsel for the respondents-Corporation has no objection.

6. Accordingly, the writ petition is dismissed as not pressed so far as the prayer no.2 in the prayer clause is concerned with the aforesaid liberty.

7. The case set forth by the petitioner is that he retired from the post Chief Project Manger / General Manager while working under the respondents on attaining the age of superannuation on 31.08.2020. After his retirement, the respondents have only paid certain dues to him with the exception of G.I.S., Gratuity and Leave encashment, which have not been paid.

8. It is contended by learned counsel for the petitioner that the petitioner is entitled for payment of the said dues along with interest from the date of retirement till the date of actual payment.

9. On the other hand, Shri Ram Ratan Lal, learned counsel for the respondents-Corporation states that criminal proceedings are pending against the petitioner in pursuance to the F.I.R. which was lodged by the District Administration under Sections 304/308/427/34 I.P.C. and Sections 3/4 of Prevention from Damages to Public Property Act. Consequently till the said criminal proceedings are pending against the petitioner, no dues of Gratuity can be paid to him.

10. In this regard, reliance has been placed by Shri Ram Ratan Lal on the order issued by the Chief Secretary dated 17.05.2001, a copy of which is filed as annexure no. C.A.-02 to the counter affidavit to contend that it has been ordered that the gratuity amount cannot be paid to an employee if any departmental or judicial proceedings are pending against him. It is thus contended that considering the criminal case lodged against the petitioner, the petitioner cannot be paid the gratuity and other dues.

11. Responding to that learned counsel for the petitioner has placed reliance on the judgment of Apex Court rendered in the case of State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another (2013) 12 SCC 210 to contend that this aspect of the matter has been considered by the Apex Court and it has been held that an employer cannot withhold any part of pension or gratuity unless the statutory rules provide for the same. It has also been held that executive instructions do not have statutory character and as such, they cannot be termed as law within the meaning of Article 300 A of the Constitution of India.

12. Placing reliance on the aforesaid judgement in the case of Jitendra Kumar Srivastava and Another (supra), the argument of learned counsel for the petitioner is that the rules of the Corporation do not empower the corporation to withhold the gratuity or the leave encashment of the petitioner even if the criminal proceedings are pending against him and thus, once the petitioner had retired on attaining the age of superannuation i.e. 31.08.2020, consequently, merely because the Chief Secretary has issued the executive order dated 17.05.2001, the same would not empower the respondents to withhold the gratuity and other dues as payable to the petitioner.

13. Having heard the learned counsel for the parties and perused the record, what emerges is that the petitioner had retired on attaining the age of superannuation on 31.08.2020. His retiral dues which include the G.I.S., Leave encashment and Gratuity have not been released to him. The reason for the same indicated in the counter affidavit is the lodging of an F.I.R. against the petitioner which has culminated in criminal proceedings against the petitioner. Reliance has been placed on the order issued by the Chief Secretary dated 17.05.2001 by learned counsel for respondents-Corporation to contend that in terms of the said executive order, the respondents-Corporation cannot release the gratuity of the petitioner.

14. After considering the case of Jitendra Kumar Srivastava and Another (supra), it is found that it is the only the statutory rules which can empower the withholding of Pension or Gratuity but in the instant case, merely because written instructions have been issued by the Chief Secretary, the same would not enable the respondents to not pay the gratuity and other retiral dues as due to the petitioner. In the instant case, no statutory rules have been brought to the notice of the Court by the learned counsel appearing for the respondents-Corporation to indicate that the rules empower the corporation to withhold the retiral dues of the petitioner. In absence thereto, the law laid down by the Apex Court in the case of Jitendra Kumar Srivastava and Another (supra) would be squarely applicable. For the sake of convenience, the relevant observation of the Apex Court in the case of Jitendra Kumar Srivastava and Another (supra) are reproduced as under:

"The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in "property". Article 300-A of the Constitution of India reads as under:

"300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law."

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."

15. Considering the law laid down by the Apex Court in the case of Jitendra Kumar Srivastava and Another (supra) as well as there being no statutory rules available with the Corporation, it is apparent that the retiral dues of the petitioner including the gratuity cannot be withheld.

16. In view of the above, the writ petition is disposed of with a direction to the respondent no.2 i.e. The Managing Director, U.P. State Bridge Corporation Ltd., Lucknow to consider the release of payment of Gratuity, Leave encashment and G.I.S. to the petitioner in accordance with law and considering the law laid down by the Apex Court in the case of Jitendra Kumar Srivastava and Another (supra).

17. Let a decision in this regard be taken within a period of eight weeks from the date of receipt of certified copy of this order. In case the amount is released, then the respondents shall also consider for payment of interest on the delayed payment of retiral dues from the date the petitioner retired from service i.e. 31.08.2020 till the date of actual payment.

Order Date :- 26.7.2023/S. Shivhare